STATE OF NEW JERSEY v. WARREN KING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5453-07T45453-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WARREN KING,

Defendant-Appellant.

____________________________

 

Submitted November 17, 2009 - Decided

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 76-129 to 76-130 and 78-1110 to 78-1117.

Yvonne Smith Segars, Public Defender, attorney for appellant (Patricia Drozd, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the March 5, 2008 order of the Criminal Part denying his petition for post-conviction relief (PCR) based upon claims of ineffective assistance of trial counsel and excessive sentence. This PCR petition stemmed from defendant's convictions following two separate trials in 1978. We affirm.

On October 18, 1976, defendant was indicted on various charges resulting from a crime spree in May 1976 when he was traveling from Florida to New York. These charges included: possession of a revolver in a public place without having obtained a permit, N.J.S.A. 2A:151-41(a); possession of a revolver with intent to use unlawfully against another, N.J.S.A. 2A:151-56; kidnapping, N.J.S.A. 2A:118-1; threats to kill, N.J.S.A. 2A:113-8; assault with an offensive weapon, N.J.S.A. 2A:90-3; robbery, N.J.S.A. 2A:141-1; armed robbery, N.J.S.A. 2A:151-5; and bringing a stolen motor vehicle into the state, N.J.S.A. 2A:119-9.

Between May 25 and June 12, 1978, the trial judge held several pretrial proceedings, during which defendant first indicated that he intended to retain private counsel rather than accept representation by the Public Defender. When defendant had failed to retain counsel by the date of the last pretrial hearing, on June 12, 1978, the judge offered him the services of the Public Defender; defendant, however, indicated that he was considering representing himself. Following this pretrial proceeding, sheriff's officers placed defendant in the jury room to await transport; defendant, however, escaped from the court house and subsequently engaged in another crime spree which led to additional indictments on August 26, 1978. Those indictments were for escape, N.J.S.A. 2A:104-6; several counts of breaking and entering with intent to rob and with intent to steal, N.J.S.A. 2A:94-1; armed robbery, N.J.S.A. 2A:151-5; threats to kill, N.J.S.A. 2A:113-8; false imprisonment, N.J.S.A. 2A:85-1; assault with an offensive weapon, N.J.S.A. 2A:90-3; unlawful use of a dangerous weapon, N.J.S.A. 2A:151-56; and possession of a firearm as a convicted person, N.J.S.A. 2A:151-8.

Defendant proceeded to trial on the 1976 indictments between July 10 and July 13, 1978. At that time he was incarcerated in federal prison for kidnapping convictions stemming from his crime spree.

Defendant stated his intention to represent himself, and the trial judge directed the Public Defender to serve as assistant counsel. During that trial, defendant professed that he was unprepared and unable to defend himself; however, he continually refused the services of the Public Defender. He was convicted of kidnapping and armed robbery. On August 9, 1978, defendant was sentenced to an aggregate term of thirty to thirty-one years, concurrent to the federal sentence he was then serving. Following sentencing, defendant was returned to federal custody.

Defendant appealed and we affirmed in an unpublished opinion on March 24, 1981. State v. King, No. A-355-78 (App. Div. March 24, 1981). We summarized the trial evidence as follows:

On the evening of May 12, 1976, defendant broke into the home of Jay Disbrow in Harve-de-Gras, Maryland, tied up Disbrow and his wife, threatened his young son with a gun, and forced Disbrow to drive him towards New York in Disbrow's 1963 Ford Falcon. Defendant explained that he was being pursued by the police. A few hours later, during the early morning hours of May 13th, defendant left Disbrow near Exit 4 of the New Jersey Turnpike and drove away. The Burlington City Police Department later found the car approximately 200 yards from the apartment of Juan Vernon Hill (the victim specified in the present indictments) who lived in the Burlington Court Apartment Complex in Burlington.

Hill was leaving his apartment at approximately 8:15 a.m. on the morning of May 13th, when he was approached by defendant who asked him directions to the Burlington Diner. As Hill was giving defendant directions, the latter pulled out a gun, got into Hill's car, and instructed him to drive to New York. Defendant took Hill's watch, the money from his wallet, and his cap.

When they reached New York, defendant instructed Hill to get out of the car. When Hill refused to get into the trunk, defendant pistol-whipped him. A security guard, hearing the commotion, approached, and defendant pulled away. Hill was taken to a hospital where he was treated for his injuries.

[Id. at 1-2.]

In that opinion, we rejected defendant's contention that his waiver of counsel was unknowing and involuntary. Id. at 16.

Defendant was tried on the 1978 indictments from November 21 through 29, 1978; he was represented by counsel throughout this trial. The jury found defendant guilty of all charges and, on December 1, 1978, he was sentenced to an aggregate term of imprisonment from seventeen to twenty-five years, consecutive to his federal sentence.

Defendant filed a notice of appeal in January 1979, at which time he was incarcerated in federal prison on charges related to his first crime spree. On April 8, 1981, we affirmed defendant's convictions in an unreported decision. State v. King, No. A-1615-78 (App. Div. April 8, 1981). We ordered, however, that defendant's convictions for breaking and entering with intent to rob be merged with his convictions for breaking and entering with intent to steal. Ibid. at 3. The Supreme Court denied defendant's petition for certification on June 10, 1981. State v. King, 87 N.J. 393 (1981).

On April 21, 2004, following defendant's release from federal prison, he was transferred to a state correctional facility. He filed his PCR petition on October 14, 2004. The Public Defender was assigned to represent him and filed a supplemental petition on his behalf. Defendant raised claims of excessive sentence, ineffective assistance of trial counsel, improper denial of his right to counsel at his first trial, and ineffective assistance of appellate counsel.

Defendant's claims of ineffective assistance of trial counsel were premised upon his assertion that he suffered from, and demonstrated overt signs of, mental illness and "probable incompetence" at the time of both trials. In support of this contention, defendant alleged that "in the federal trial in 1978, the court was sufficiently concerned to have had petitioner evaluated." However, defendant did not append that evaluation. Rather, defendant submitted a psychological evaluation conducted on July 13, 2006, at the request of PCR counsel. In that evaluation, Dr. Edward J. Dougherty noted that he interviewed defendant and administered psychological tests and reviewed "numerous documents pertaining to this matter indicating the abnormal behavior observed by others of [defendant] during his trial . . . ." He concluded, however, that "it is not possible, based on documents alone, to render a professional opinion as to [defendant's] mental health at that time." Defendant reported that "he was not treated for mental health problems while in prison." Dr. Dougherty concluded:

Many of these behaviors were reportedly observed in [defendant] during his trial. Although a definitive diagnosis cannot be made at this time, it is evident that [defendant] should have been examined by a qualified mental health practitioner to render an opinion as to any possible underlying mental illnesses that could have interfered with his ability to actively participate in his trial. Severe depression can affect a person's ability to corporate [sic] with counsel and limit his ability to enter or understand any type of plea negotiation.

Defendant also contended that trial counsel was ineffective for failing to request re-sentencing under the new Criminal Code, Title 2C, which took effect on December 1, 1979, under which the sentences on some of his convictions could possibly be modified to lower terms than under Title 2A.

Defendant also claimed that he was entitled to a re-calculation of gap time credits under N.J.S.A. 2C:44-5(b)(2), and that the imposition of a sentence consecutive to his federal sentence was an abuse of discretion. Finally, defendant argued that the trial judge should have been disqualified for bias, and that appellate counsel was ineffective for failing to raise the issues set forth in his PCR petition.

Judge Thomas E. Smith, Jr. heard argument on December 7, 2007, and issued a written opinion on February 17, 2008. The judge first ordered that defendant's judgment of conviction of December 1, 1978 be amended to reflect the merger mandated by our 1981 opinion. State v. King, No. A-1615-78, supra, slip op. at 3. The judge further addressed defendant's entitlement to gap time credit, and awarded him 822 days to be applied to the sentences imposed on August 9, 1978.

Regarding defendant's other claims, the judge determined that defendant had failed to demonstrate sufficient "excusable neglect" to warrant relaxing the five-year time limitation for seeking such relief by a PCR petition. R. 3:22-12. Nonetheless, the judge addressed those claims on the merits.

The judge rejected defendant's claims of ineffective

assistance of trial and appellate counsel. Regarding appellate counsel, Judge Smith found that the "mere assertion of non-contact with appellate counsel does not meet the first part of the Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] test. The defendant does not present any corroboration to support his assertion. Absent such corroboration and given the passage of time[,] this court will not upset this conviction on such grounds." Regarding appellate counsel's failure to raise certain issues, the judge noted that "[a]ppellate counsel does not have the obligation to raise every issue requested by the defendant. In this matter the record reflects that appellate counsel raised all appropriate issues according to professional standards as enunciated in Strickland."

The judge next addressed defendant's request to be resentenced under the current criminal code, pursuant to N.J.S.A. 2C:1-1(d)(2), which provides in pertinent part that

[a]ny person who is under sentence of imprisonment on the effective date of the code for an offense committed prior to the effective date . . . who has been sentenced to a maximum term of imprisonment for an offense committed prior to the effective date which exceeds the maximum established by the code for such an offense . . . , may move to have his sentence reviewed by the sentencing court and the court may impose a new sentence, for good cause shown . . . .

Judge Smith noted that "[t]his application is a separate matter and must be filed pursuant to the rules of court. R. 3:21-10(b)(4). The defendant has made no application to this court and this court will not address it in this decision."

Regarding defendant's claim of ineffective assistance of counsel for failure to have his competency evaluated prior to trial, Judge Smith noted:

The record in this case indicates that while the defendant clearly acted out during both trials, the court agrees with the [S]tate that the defendant's actions were not indicative of his competence to stand trial. [The trial judge] made many observations of the defendant on the record. In fact it was [the trial judge's] belief that the defendant was playing games with [the] court and listening to others for advice. Mere suggestions proffered by the defendant do not rise to a level necessitating that this court upset the trial court judge's judgment of competence based upon his observations of the defendant.

Judge Smith further noted that when "defendant was evaluated for competency prior to his federal trial[,] [t]hat evaluation concluded that the defendant was competent to stand trial."

The judge summarily rejected defendant's arguments that the imposition of consecutive sentences constituted an abuse of judicial discretion, and that his sentences were excessive. Finally, Judge Smith found "no merit" to defendant's argument that the trial judge should have been disqualified, noting that "[t]here is nothing in the record to warrant such an action on the part of the trial judge."

On appeal, defendant raises the following contentions for our consideration:

POINT I

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

POINT II

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM

Having considered these contentions in light of the record and the controlling legal principles, we are convinced that they are "without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2); we affirm substantially for the reasons stated by Judge Smith in his decision. We add only the following comments.

We are satisfied that the judge properly denied defendant's ineffective assistance claims as time-barred under R. 3:22-12. The fact that defendant was incarcerated in federal prison until 2004 does not constitute "excusable neglect" sufficient to warrant relaxation of that bar. Ibid. Moreover, we are further satisfied that the judge's assessment of the merits of those claims is supported by the record.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, supra, and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

Defendant's ineffective assistance of trial counsel claims stemmed from his competency and excessive sentence issues. We are satisfied that Judge Smith required no "evidence outside of the trial record[]" to resolve these issues. As noted, the trial judge had opined that defendant was "playing games" with the court; moreover, defendant's evaluation for competency at his federal trial established that he was, in fact, competent to stand trial.

Defendant is entitled to an "evidentiary hearing to resolve ineffective-assistance-of-counsel claims" only "if [he] . . . has presented a prima facie claim in support of post-conviction relief. . . . To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in" Strickland v. Washington, supra, and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). State v. Preciose, 129 N.J. 451, 462-63 (1992).

We are satisfied that Judge Smith properly denied PCR relief without a plenary hearing. "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant's claim that PCR counsel rendered ineffective assistance is wholly without merit. Not only did PCR counsel submit an extensive brief in support of defendant's petition in which she raised ten separate issues, counsel also obtained a psychological evaluation of defendant in furtherance of his competency claims. The claim that PCR counsel "made no attempts to contact trial or appellate counsel so that they could be questioned regarding the claim during a hearing," is of no moment. Defendant has failed to explain how such contacts might have resulted in the production of evidence favorable to him. Likewise, defendant's claim that PCR counsel "was . . . not prepared to go forward with any other witnesses whom [sic] may have aided [d]efendant in his defense[,]" is without merit. Defendant has neither identified such "other witnesses" nor proffered any evidence which may have been presented that would have assisted "in his defense." Cf. State v. Rue, 175 N.J. 1, 19 (2002) (PCR counsel's failure to "explore" and advance "the most effective arguments in favor of" a defendant's claim constitutes ineffective assistance within the intendment of "the representation guaranteed by" Rule 3:22-6).

 
Affirmed.

(continued)

(continued)

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A-5453-07T4

May 3, 2010